The principle of ministerial responsibility means a minister must answer for the policies and advice presented to cabinet – including the flawed Robodebt scheme.

Ministerial responsibility is a fundamental principle underpinning parliamentary systems of government. It establishes that ministers are accountable to the parliament and ultimately to citizens for the conduct and actions of their departments.

Ministerial responsibility is therefore a cornerstone of democratic governance, ensuring that ministers are held accountable for their actions and decisions. This principle fosters public trust and maintains a system of checks and balances between the executive and legislative branches of government.

The biggest and most widely recognised policy failure in recent years was the Robodebt scheme introduced by Scott Morrison when he was the responsible minister.

The purpose of this scheme was to identify and recover any overpayments of social security income support payments to those income support recipients. But the scheme was fundamentally flawed.

The scheme assumed that each recipient’s income in any fortnight could be determined by taking data held by the Tax Office of the recipient’s total annual income and then taking the fortnightly average of that annual income. This estimated fortnightly average income was then used to determine whether and by how much that presumed ’true’ income exceeded the income the recipient had reported to the department administrator for that fortnight.

The obvious problem with this Robodebt scheme is that the fortnightly employment income of many social security income support beneficiaries varies significantly from fortnight to fortnight. The number of hours that they are able to work changes constantly, especially for those who are unemployed, and estimating their earned income in any particular fortnight by averaging their annual income therefore makes no sense.

After a few years in September 2019, the Commonwealth Solicitor General provided advice that aspects of the averaging process did not comply with social security legislation and the then Government stopped this averaging process.

Subsequently, soon after it was elected in May 2022, the incoming Albanese Government announced a Royal Commission into the Robodebt Scheme. This Royal Commission found that Robodebt was flawed from the outset, for the reasons given above, and that it had generated results that were frequently inaccurate, raising demands by the authorities for repayments that caused considerable consternation and suffering.

The Royal Commission referred the six people most involved in the development of Robodebt, including the former Minister, Scott Morrison, to the National Anti-Corruption Commission (NACC). For some time, however, the NACC declined to investigate and only did so after findings by the inspector of the NACC and separately by the former High Court judge Geoffrey Nettle.

Last Wednesday the NACC findings were released and the finding of most interest here is that the former minister Scott Morrison had no findings of corruption against him.

The Royal Commission had previously found that the principle of ministerial responsibility imposed an obligation on Mr Morrison to detect and arrest any misleading or potentially misleading in his cabinet submission. Further that Mr Morrison allowed Cabinet to be misled because he did not make the obvious enquiries.

On the other hand, the NACC has argued that “it by no means necessarily follows that Mr Morrison was personally at fault for not detecting the failings of DSS [his departmental advisers] or that he set out to act dishonestly or in bad faith."

As a former Cabinet Secretary and Head of the Prime Minister’s Department, and helped by the expert advice of some outstanding colleagues, I was charged with advising the Prime Minister and the Government when such issues of Ministerial responsibility arose, and I have to say that I disagree with the NACC finding that Morrison is not responsible for the flawed Robodebt scheme.

As is made clear in the Cabinet Handbook, cabinet submissions are brought to Cabinet by the responsible Minister, and they must sign off on those submissions. Cabinet submissions are not submissions signed off by the minister’s department.

Ministers are therefore expected to take full responsibility for the content, quality and accuracy of the advice provided to the Cabinet under their names. In addition, and more generally, the constitutional convention of ministerial responsibility demands that ministers are ultimately responsible for the actions and omissions of their departments.

But according to the NACC report ministers do not have the time nor in most cases the ability to reinterpret or re-examine matters covered in their submissions. Instead, the NACC Report says that ministers are expected to and do rely on the warranty of secretaries of their departments who have signed off on the draft cabinet submissions.

I accept that ministers cannot be expected to engage in the details of the administration of individual cases, but they do need to satisfy themselves that the policy makes sense and that the administrative system supporting it is sound. Sure, they will rely mostly on expert advice, but they do need to probe that advice if they are to satisfy their responsibilities.

Actually, most of the discussion underpinning the NACC findings regarding Morrison’s ‘innocence’ is about whether legislation was needed to allow income averaging. The equally or more important issue of whether the Robodebt policy based on income averaging was soundly based is largely ignored.

Also the NACC report relies heavily on its supposition that Morrison had no motive to mislead the Cabinet regarding the need for legislation. However, the question of motive is irrelevant. What matters is Morrison’s responsibility to ensure the advice given was sound.

As regards the issue of whether Robodebt needed to be based on legislation or not, I agree that the minister was entitled to take the expert advice. However, even in this case, he would need to probe, especially as there was evidence of conflicting opinions.

And more importantly, I would argue that as discussed above it should have been obvious that income averaging to determine an unemployed person’s income in any particular fortnight defies common sense. Morrison should have understood that, as should his officials. But Morrison has final responsibility for taking the proposal to Cabinet and it was his duty to be absolutely sure that a proposal of this significance was soundly based.

Neither Morrison nor a number of senior officials, including the Department of Finance, come out of this Robodebt saga well. Nor does the NACC given the flawed report into Robodebt corruption that it has just produced.

Whether Morrison was corrupt or not as defined by the NACC Act raises questions about its definition of corruption. In any event Morrison was responsible for a major policy failure, and he must also take responsibility for misleading his colleagues. Morrison’s behaviour in seeking to excuse himself from accepting his ministerial responsibilities is reprehensible, even if it is not technically corrupt.

Fortunately, Morrison is no longer with us, but the government needs to consider what action it needs to take to lift the standard and capability of its public service, which was also culpable in this matter, and its NACC which has produced a most unsatisfactory report.